Political Sciences and International Security

COSTANZA MARGIOTTA BROGLIO MASSUCCI

The course aims to provide an introduction to the main critical theories of law, reconstructing their theoretical foundations and their relationship with contemporary legal positivism and American legal realism.
The course examines the principal strands of critical legal theories (Critical Race Theory, feminist legal theories, queer theory, postcolonial studies, migration studies, disability studies), highlighting the critique of the neutrality of the legal subject and its entanglement with power relations, social structures, and dynamics of exclusion.

Knowledge and understanding: knowledge of the main critical legal theories and their theoretical foundations, as well as their relationship with legal positivism and American legal realism.
Applying knowledge and understanding: ability to analyse legal phenomena through critical approaches, identifying the role of power, social structures, and exclusion.
Making judgements: development of critical and independent evaluations of the supposed neutrality of law and the legal subject.
Communication skills: ability to clearly present and discuss critical perspectives on law using appropriate terminology.
Learning skills: capacity for independent study and for engaging with interdisciplinary and evolving critical legal debates.

At the end of the course, the student is familiar with the main critical theories of law and their theoretical foundations; is able to understand the transition from legal positivism to legal realism and critical theories; develops the ability to critically analyze law as a social and political phenomenon; is able to apply different theoretical perspectives to the analysis of case law; acquires the tools to identify power dynamics and forms of exclusion within legal systems.

No specific prerequisites are required.

A first part introduces contemporary legal positivism through the analysis of the main theories of Hans Kelsen, H. L. A. Hart, and Ronald Dworkin, with particular attention to the relationship between law and morality and to the problems of validity and justification of legal decisions.
A second part is devoted to American legal realism, presented as a break from formalism and as a precursor to critical theories. From this perspective, law is analyzed as a social practice and the creative role of the judge is examined.
A third part addresses the main critical theories of law, with particular reference to Critical Race Theory, feminist legal theories, queer theory, postcolonial studies, migration studies, and disability studies. These perspectives challenge the neutrality of law and highlight its connection with social structures and power relations.

- Maria Giulia Bernardini e Orsetta Giolo (a cura di), Le teorie critiche del diritto, Pacini editore, 2017

- Schiavello Aldo, Velluzzi Vito, Positivismo giuridico. Un antologia, Giappichelli, 2005

- Valeria Marzocco, Nella mente del giudice. Il contributo di Jerome Frank al realismo giuridico americano, Giappichelli, 2018

- S. Castignone (Curatore) M. Ripoli (Curatore) C. Faralli (Curatore), Il diritto come profezia. Il realismo americano: antologia di scritti, Giappichelli, 2003

- Kendall Thomas, Gianfrancesco Zanetti, a cura di, Legge, razza e diritti. La
Critical Race Theory negli Stati Uniti, Diabasis, Reggio Emilia, 2005.

The course is structured through lectures, seminars with guest lecturers from other universities, and student presentations. Lectures provide the theoretical and legal foundations, while seminars and presentation activities encourage active participation and deeper engagement with the topics covered.
The course also includes contributions from external experts, as well as the analysis of case law.

Attendance is not mandatory.

For attending students only, there is the possibility to present a paper in class, which will count towards the final evaluation.

For Erasmus students, it is possible to take the exam in English or French.

Non-attending students are required to contact professor Margiotta by email to receive the exam program at costanza.margiotta@uniroma1.it

How does American legal realism represent a critique of legal positivism?
What is the contribution of critical legal theories to questioning the neutrality of law?